Dhiab Preliminary Injunction Hearing Read-Out, Part Three

Today marks our last little dispatch about the preliminary injunction hearing in the case of Abu Wa’El (Jihad) Dhiab, Syrian national, cleared-for-release Guantanamo detainee, and---most relevantly for present purposes---intermittent hunger-striker. Yesterday's open proceedings can be summarized straightforwardly: in essence, the government concluded its evidence against Dhiab’s motion for a preliminary injunction with respect to certain Guantanamo force-feeding protocols. In keeping with the day before, such evidence was presented without the calling of witnesses; instead, attorneys for the United States highlighted, and read aloud from, key pieces of documentary proof. There followed a lengthy closed session; upon its conclusion, and at the court’s direction, the parties’ forewent closing oral arguments on the motion.  Summation instead will be presented in forthcoming written briefs; presumably, a written ruling will come after that. You will find a brief summary of yesterday's action below the jump. On behalf the United States, lawyer Andrew Warden picks up where he and his side left off the day before. He will proceed methodically, he said, flagging material that bears on each of the major themes raised in Dhiab’s motion: nasogastric tube insertion, rate of force-feeding, re-insertion of tubes, the five-point restraint chair, Dhiab’s consistent refusal of medical examination, forcible cell extractions, and Dhiab’s “need” for a wheelchair. As noted earlier in the hearing, GTMO staff verify appropriate tube placement in detainees’ stomachs using a particular method. After showing the court the syringes used by GTMO staff, Warden describes how squeezing 10 CCs of water in the tube and listening for a gag reflex can accurately predict where the tube ends up. Relatedly, the lawyer picks out a document he highlighted the day before. It seems Cincinnati Children’s Hospital issues written instructions to parents seeking to enterally feed their children. What about force-feeding’s duration? Reading government reports, Warden says the procedure usually takes 30-40 minutes, but can take up to 4 hours. However short or long it may be, patient comfort is an important consideration throughout the process, as several government exhibits (again, medical reports) attest. And there’s no one-size-fits-all, systematic approach in play here; instead, force-feeding begins slowly, and the rate of feeding ramps up only when the patient feels comfortable. Apropos of individualization, Warden then turns to Dhiab’s personal history. The attorney reads Guantanamo materials that say, in so many words, that Dhiab often does not need to be force-fed at all. In August of this year, for instance, he was only force-fed 10 times. The next item on Warden’s list: reinsertion of tubes after each feeding. Per material in the record, a mass hunger strike was undertaken in 2005 at GTMO, despite what Warden describes as attempts by the medical staff to build rapport and trust. The protest had its roots in a fatwa, a copy of which Warden displays: whoever died of hunger first in GTMO would find paradise in the afterlife, apparently. Having that promise in mind, detainees sabotaged the feeding tube, using both to siphon feed from their stomachs, and to induce gag reflexes and vomiting. This, despite GTMO staff’s willingness to offer detainees choices as to the color of the feeding tubes and the flavor of the nutritional supplements (which included strawberry, butter pecan, chocolate, among others). And Warden’s proof suggests that several detainees developed ear, throat, and nose infections, when feeding tubes were left inserted over extended periods of time. For all these reasons, GTMO changed its feeding tube policy to one calling for tube re-insertion twice daily for force-fed detainees. But GTMO staff do make exceptions to that general rule; one detainee, for example, is able to keep his tube in for up to three days because of previous nasal surgery. But there is no equivalent “medical reason,” Warden suggests, for keeping Dhiab’s tube in place. Talk turns from tubes to five-point restraint chairs. There was, apparently, a long period of negotiation and attempted accommodation by GTMO staff towards detainees regarding restraint during force-feedings. But it was difficult: among other things, Warden describes a series of violent acts and physical resistance by detainees towards GTMO staff conducting the feedings. On the advice of visiting experts, he says, GTMO staff decided that the “upright” and “ergonomic” restraint chair was the best possible way of ensuring safety for detainees and staff alike. And Warden is clear in this regard: the restraint is not aimed at “punishing” the detainees, but rather “ensuring” their “health.” There is no restraint-for-all policy at GTMO, either. Camp staff apparently approved six inmates in September of this year to eat on a sofa without any restraint, have communal force-feedings, and watch television as a distraction. Judge Kessler asks if Dhiab was offered such treatment; he was not. This draws an objection from Dhiab lawyer Eric Lewis; Warden rejoins with a reference to Dhiab’s behavior, which, according to Warden, is “violent” and “abusive.” The detainee has been written up 12 times since April 2014 for having contraband in his cell, for example; he likewise also had five violent altercations with GTMO personnel, and has threatened to “splash” or murder the guards 8 times. And Dhiab repeatedly has refused medical exams, including ones in April, June and August of 2014. The baton passes from Warden to another Justice Department attorney, Ron Wiltsie.  The latter touches on two topics: Dhiab’s ability to walk, and his need (or not) for a wheelchair; alogn with forcible cell extractions.  On the first, Wiltsie refers to several possible conclusions one might draw about the detainee’s ongoing capacity to ambulate: (1) Dhiab has a physical injury and is unable to walk; (2) Dhiab has a physical injury and is, in fact, able to walk; (3) Dhiab has a physio-psychological injury and is unable to walk; or (4) Dhiab has a physio-psychological one but is able to walk.  But, according to Wiltsie, that’s all we know, for the important reason that Dhiab consistently and pointedly refuses all exams meant to ascertain his true health. The lawyer observes that, although the Senior Medical Official doubted that Dhiab needed a wheelchair, Dhiab nevertheless received one on September 8th. As for the reasons underlying the doubt, it seems GTMO staff witnessed several instances of Dhiab walking around unaided in his cell and putting weight on both legs. Indeed, Wiltsie alleges that when Dhiab thought guards weren’t looking, he would stand up and move of his own accord. At any rate, in February 2014, the wheelchair was given to Dhiab in order to improve his attendance at medical examinations. But there’s still an open question about what Dhiab needs exactly, as he refused neurology consults in September 2014. Forcible cell extraction: Wiltsie reminds the court that such procedures are only used in extreme circumstances, where detainees refuse guards’ orders, endanger their own lives or others’ lives, and so forth. But any detainee who voluntarily accepts transfer to a force feeding will not be forcibly taken from his cell. Detainees have many ways of avoiding that, he argues; one option is to consume needed nutrients inside the detainees’ own cells. Wiltsie adds that forced removals are carried out with a detainee’s previous medical history in mind, in order to minimize the chances of injury. At this point, the judge calls for lunch. A closed session follows afterwards, wherein (apparently) court and counsel watch videos of Dhiab being forcibly cell extracted and force-fed.